Defination of Disability

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-12-30
CLNP Page ID:	2451
Page Categories:	[Human Rights]
Citation:	Defination of Disability, CLNP 2451, <https://rvt.link/en>, retrieved on 2024-12-30
Editor:	Sharvey
Last Updated:	2024/12/27

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C.M. v. York Region District School Board, 2010 HRTO 1494 (CanLII)

[11] The first issue is whether pediculosis or nits is a disability or perceived disability within the meaning of the Code. The relevant provisions of the Code read as follows: 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

10. (1) “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

…

(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability

[12] The applicant’s next friend argues that lice or nits are treated as a medical issue by the Board and in our society more generally. He also argues that the manner in which the Board treats lice or nits in its practices and policies makes it a disability or perceived disability, through the exclusion of students with lice or nits from school until they are treated. He argues that this shows a considerable stigma as a result of nits and lice in the hair. The applicant cites a decision of the Workplace Safety and Insurance Appeals Tribunal, Decision No. 2253/07, 2007 ONWSIAT 2621 (CanLII), in which contracting head lice by an educational assistant in a school board was found to be a workplace accident with the meaning of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended.

[13] The Supreme Court of Canada has set out a framework for analyzing whether a medical condition or ailment is considered a disability within the meaning of human rights legislation; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27 (CanLII). A decision-maker must consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made (para. 80).

[14] The Court has made it clear that that everyday illnesses or normal ailments are not generally disabilities under human rights legislation stating at para. 82:

These guidelines are not without limits. Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.

The Tribunal has applied this test under the Code: see Anderson v. Envirotech Office Systems, 2009 HRTO 1199 (CanLII) and Moulton v. Leisureworld Caregiving Centre, 2009 HRTO 1575 (CanLII).

[15] I find that in the circumstances of this case, lice or nits, like colds, are a normal ailment that does not fall within the ground of disability protected by the Code. Lice or nits occur very often among Ontario children and last a short time. They are easily treated and removed and do not cause significant obstacles to participation in society. Like individuals with cold symptoms, to avoid the risk of spreading to others, individuals with lice may be required not to participate in school or work until the symptoms are treated or have resolved, but that does not mean that the ailment leads to stigma or bias in the sense of Code­-protected disabilities that are barriers to full participation in society.

[16] I do not agree with the applicant that what he characterizes as the Board’s overreaction can make lice into a disability within the meaning of the Code. The exclusion of young students with lice or nits for a brief period until they are removed, whether scientifically justified or not, is not the type of treatment that the Supreme Court is referring to when it talks about “negative bias” against people with physical disabilities. Lice or nits are common, short term and easily treated. The applicant’s disagreement with the Board’s response to head lice and nits does not make the condition a disability that falls within the purposes of the Code to prevent stereotyping and prejudice based on personal characteristics. Moreover, the treatment of lice under particular circumstances under the Workplace Safety and Insurance Act does not make it a disability under the Code, unless the applicant in this case had claimed benefits for it under that legislation, which is not the case.

[17] Accordingly, I find that the Application does not raise the ground of disability within the meaning of the Code.